NILA PADHAN Vs. GOKULANANDA PADHI
HIGH COURT OF ORISSA
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Ray, C.J. -
(1.) The short synopsis of facts giving rise to this litigation are that the disputed lands were Bhogra lands within the proprietary right of one Bida Babu. The said right has now been acquired by the plff. & on the strength of the proprietary right he sues for possession of the lands in ejectment of the defts. It is deft. 4 alone who is interested in the controversy. He demurs to the plff's. suit on the plea that the lands had been demised on a permanent lease to his father (Kumuda) in the year 1915, & that since then his father & after him he himself have been in continuous possession. The only break, if any, in the continuity, as is put by the deft, consisted in one 'Lambardar' occupying it on his behalf. The plff. in the year 1939, brought a suit in ejectment against 'Lambardar & obtained a decree for possession. He put the decree into execution & got writ of delivery of possession executed. Whether, as a result of such execution, he got Page 1 of 4 Nila Padhan and Ors. vs. Gokulananda Padhi and Ors. (10.10.1946 - ORIHC) 7/3/2007 actual possession is a matter, in dispute.
(2.) The said 'Lambardar' was sued because he happened to have been recorded in Hamid's Settlement Record as a tenant in respect of the disputed lands. In the Remarks Column of the Settlement entry, it was mentioned "permanent right on the strength of a lease dated 30-1-1915," This date is identical with the date of the lease on which deft. 4 relies. The lease is Ex. A in the case. The plff. mainly bases his case on the decree in ejectment obtained against 'Lambardar' & the delivery of possession through Ct. in execution of that decree.
(3.) The deft, contested the suit on contentions which are also reiterated before us, namely, that the lease, though unregistered, will entitle him to resist the plff's, suit for possession under Section 53-A, T.P. Act, the decree & the execution proceedings not being binding against him. The plff. repels these contentions on the grounds (i) that 'Lambardar's possession having been for a period more than 12 years & adverse to the deft, or to his predecessor-ininterest or to both, the plea of doctrine of part performance is no longer available to him, & (ii) that the lands covered by the lease (Ex. A) are not the disputed lands. The lease deed describes the lease-properties by reference to Dewar's Settlement plots while the Settlement Record, the decree in ejectment suit & the present plaint refer to the properties, in dispute in this litigation, by reference to Hamid's Settlement plot. The deft, in the Ct. below, had filed an appln. for issue of a commission for the purpose of verifying the identity of these two sets of plots but did not press for it.;
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